New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 228265

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 08/10/2022 Pendency Hearing

08/11/2022

09/02/2022 Status Hearing

10/07/2022

11/04/2022

Actual Record Close Date: 11/10/2022

Date of Decision: 11/10/2022

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/10/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/11/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 09/02/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/07/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 11/04/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

[REDACTED], Parent

[REDACTED],

Dean of Students, [REDACTED] School

For the Department of Education: [REDACTED], ESQ., Attorney

DOCUMENTS ENTERED INTO THE RECORD

PARENT DOCUMENTS

Ex Date Document Page(s)

Entered 08/10/2022

A 07/01/2022 Due Process Complaint (DPC) 6

Entered 11/04/2022

B 02/02/2019 Neuropsychological Evaluation 21

C 2021-2022 Annual Report Card 9

D 09/06/2022 Student’s Program Description 2

E 2022-2023 Class Schedule 1

F 09/07/2022 Tuition Affidavit 2

G Undated [REDACTED] Program Description 7

H 07/07/2022 Enrollment Agreement 5

I 2020 Tax Returns 2

J 06/16/2022 Ten Day Notice of Intent 3

DEPARTMENT OF EDUCATION

Entered 11/04/2022

Ex Document Date Page(s)

1 Individualized Education Program (IEP) 06/02/2022 40

2 IEP Attendance Page 06/02/2022 1

3 IEP 01/04/2022 40

4 Defer to Central Package 01/05/2022 5

5 Psychoeducational Evaluation 12/08/2021 9

6 Vocational Interview – Student 11/18/2021 1 7 Vocational Interview – Parent 11/24/2021 3

HEARING OFFICER DOCUMENTS

Entered 08/10/2022

I Notice of appointment, 07/148/2022, four pages

II Pendency Form, 07/22/2022, two pages

III Notice of Appearance, 07/15/2022, one page

INTRODUCTION

On 07/14/2022, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

On 08/10/2022 a Pendency Hearing was held.

Pendency Form was entered into the Record and therefore a Pendency Order was not necessary. (T 5, IHO Ex II)

Parent Attorney advised the IHO that the matter was referred for settlement and documents were being put together to submit to the DOE. (T 5)

Hearing was set, and continued, on 08/11/2022. This date was set to allow the DOE an opportunity to respond to the allegations contained in the DPC. (Ex A)

Appended to the record are lists of persons in attendance and the documents received in evidence.

Parent DPC alleges a failure of the DOE to offer the Student a Free Appropriate Public Education (FAPE) for the 22-23 school year (School Year -SY). (Ex A 1)

Allegations include:

• • The DOE failed to develop an appropriate IEP for the 22-23 school year, denying the Student a Free and Appropriate Public Education (FAPE);
• • IEPs, of 01/04/2022 and 06/02/2022, each deferred the Student’s placement to the Central Based Support Team (CBST) for placement in a New York State Approved Non Public School (Ex 1 & 3);
• • Parent objected to the IEP recommendations and placement;
• • Parent did not receive a final IEP for the Student (Ex A);
• • Parent continued enrollment at The [REDACTED] School (Unilateral Placement – (UP);
• • The UP serves as an appropriate 22-23 Student placement;
• • Parent notified the DOE of UP enrollment and intent to seek District funding (Ex A 2 & Ex J)

Parent seeks relief that includes:

• • A Declaration that the DOE failed to offer the Student a FAPE for the SY at Issue.
• • A Declaration that the Parent’s placement of the Student at [REDACTED] was equitable, and is appropriate on an ESY (Extended School Year) basis.
• • An Order for the Direct Funding of the Student’s tuition at [REDACTED] for the SY at Issue.
• • An Order for door-to-door transportation services and/or reimbursements for any costs incurred for transportation services to enable the Student’s attendance at UP.

(Ex A 4-5)

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

THE POSITION OF EACH PARTY

Hearing was held, on 08/11/2022, to allow the DOE an opportunity to respond to the allegations contained in the DPPC. (Ex A)

The DOE opted not to appear at Hearing, or otherwise defend, against the allegations contained in the DPC. (Ex A)

Parent was still accumulating documents to submit related to the settlement process. (T 10-11)

A Status Conference was set, for 09/02/2022, to determine the status of the Settlement.

Parent Attorney advised the IHO that she was still awaiting documents from the UP, which was closed until recently. (T 16-17)

Parties motioned to extend the compliance date, in light of possibility of settlement. Motion was granted, and another Status Conference was set for 10/07/2022. (T 16-17)

Status Conference was held, on 10/07/2022. Parties advised that settlement documents were being reviewed, and the matter was not yet settled. (T 21-22)

Hearing date was set for presentation of Parent Case, on 11/04/2022.

Parent Attorney argues the evidence supports the allegations contained in the DPC and relief should be granted. (T 61-63)

Parent relied upon Documentary Evidence and Testimony at Hearing to support the allegations contained in the DPC, and support the appropriateness of the sought after relief. The evidence, as considered below, is found to be credible and supportive of the Parent allegations and supports the appropriateness of the sought after relief, as considered below:

[REDACTED] – Dean of Students – The [REDACTED] School Witness provided Testimony which included:

• • The UP is: “a school for students with learning disabilities, school anxiety -- there's some students on the spectrum -- that need small classes and individualized services and differentiated instruction (T 39);
• • UP is a private school (T 39);
• • Students at the UP have: “learning disabilities, including dyslexia, dysgraphia, dyscalculia, school anxiety, students who just couldn't make it in the large class in a public school for various reasons” (T 40);
• • A review of the Witness’ role at the UP (T 40);
• • Witness observes the students, and teachers on a regular basis (T 41);
• • A review of Witness credentials (T 41-42);
• • Presently, Student is in the 8th grade;
• • Student has been at the UP since [REDACTED] grade (T 42);
• • Describes Student as: “a hard worker. Her -- she puts a lot of effort into everything she does despite the struggles that she has. She is social, which -- and usually very happy, so it helps her learn better. She's engaged in the conversation. She's engaged in discussion. Math is definitely her strength. And one of the other strengths is that she advocates for herself” (T 43);
• • Witness attends Student Committee on Special Education (CSE) meetings (T 43-44);
• • Witness has reviewed Student assessments (T 44);
• • Student has a learning disability in Reading and anxiety (T 44);
• • When Student began, at the UP, her Reading skills were about at a 1st grade level (T 45);
• • In May of 2022 Student tested in Reading at a [REDACTED] grade level (T 50);
• • Student schedule reflects [REDACTED], which is an Orton-Gillingham approach based reading program (T 56, Ex E);
• • Student is about at grade level in Math (T 45);
• • Student supports, in Math, include: a calculator; one-to-one or small group; manipulatives; and multisensory activities (T 52);
• • Student at times gets overwhelmed and will go see the Counselor (T 45);
• • Student is in a class of five, grouped by ability, with one teacher and a floating assistant (T 46-47);
• • Witness reviewed UP teacher qualifications (T 47-48);
• • Student supports include: individual reading instruction every day; speech in group and individually; occupational therapy individually; and counseling twice a week (T 48);
• • Student program is ten month, with a five week summer program (T 49);
• • Witness explains why the Student attends the summer program: “First of all, because Haley's reading skills really needs consistent instruction. She needs to -- we need to make sure that she's got reading all year round. Also, we've seen some regression over breaks so that with the reading especially, and math also, just to maintain the skills so that when she starts the next year she's still at grade level” (T 49);
• • Student benefits from the small class size where the teacher is able to “give her the individual help that she needs and also pinpoint what she needs so that she’s able to reinforce and not move on until (Student) has learned what she needs to learn” (T 50);
• • Witness reviewed Student written expression skills, progress, and current writing assignments (T 51-52);
• • Student is estimate to be at a [REDACTED] grade level in writing (T 52);
• • Student progress is reported three times each year, along with two additional Parent Teacher conferences each year (T 53); and
• • The UP provides opportunities for social development monthly. (T 54)

[REDACTED], Parent

Witness provided Testimony which included:

• • Student began attending the UP threes years ago (T 57);
• • Student was originally placed at the UP due to a bullying incident at the previous school, and overall lack of improvement emotionally and academically (T 57-58);
• • Parent concerns included that the Student was not “reading at all” (T 58);
• • Referring to Student attendance, at the UP: “it's enriched her life. She's a happier, you know, human being…Honestly, seeing her grow academically, emotionally, spiritually for me has been wonderful. Her grade levels have gone up. She feels more confident about herself. We're go -- we're -- we go to Barnes & Nobles every two weeks once I get paid, and I get her a book. And she's reading books on her own, and when she gets stuck, she comes to me.” (T 58-59);
• • Parent has paid $600.00 towards Student UP Tuition (T 59);
• • Witness was asked why more has not been paid towards the current Tuition: “Because I don't have the income. If I did, I would pay the whole thing because this school is every -- it's worth every penny. I could sit here and cry because I get choked up, but just to know that she has gone up levels…I wish I could give. If I won the lotto tomorrow, that's where it would go.” (T 59-60);
• • Parent states that in reference to the submitted 2020 Tax Return, income has changed, and for the 2021 year, as impacted by Covid, it was about $[REDACTED] (T 60, Ex I); and
• • Currently, Witness’ annual salary is “looking like $40,000.00” (T 61).

The DOE submitted evidence which supports the Student entitlement to special education services.

Each evidenced IEP includes:

• • Classification of Learning Disability (Ex 1-1 & 3-1); and
• • Recommendation to a special class in a NYSE-Approved Non Public School, for a 12 month school year; Counseling, Occupational Therapy (OT), Speech Language Therapy (SLT), systemic reading instruction, and assistive technology. (Ex 1-32 & 1-33 and 3-32 & 3-33)

The DOE ultimately deferred the Student for placement in a NYSED Non-Public School.

(Ex 4)

Psychoeducational Evaluation, of 12/08/2021, confirms areas of Student delay and need for special education services..(Ex 57 & 5-8)

Parent submitted evidence includes:

A 07/01/2022 Due Process Complaint (DPC)

Parent details allegations of a denial of FAPE for the 22-23 school year, and sought after relief.

B 02/02/2019 Neuropsychological Evaluation

Detail Student testing and confirms areas of delay, as well as need for special education services.

Evaluation reveals academic delays and anxiety. (Ex B 8)

Recommendations are made, which include: dyslexia reading remediation; reading comprehension interventions; supports to address anxiety; and various teacher and classroom strategies to address Student’s educational needs. (Ex B 8-9)

C 2021-2022 Annual Report Card

Reports Card for previous school year, at the UP, includes passing grades in all academic areas.

Report details areas of Student need, progress, and supports, in areas that include academic and social functioning, including:

• • English Language Arts (ELA) supports:
• • [REDACTED] – hands-on multisensory intervention program (Ex C 2)
• • Math supports:
• • Calculator
• • Conversion Chart
• • Manipulatives (Ex C 2)
• • Resource Room:
• • For the 3rd Trimester a “primary focus has been writing and working on her writing goals using specific strategies to restate the question, answer the question, cite her evidence, and explain her citation using annotation. [Student] benefits from prompting, modeling, and listening comprehension when reading through an article, annotation, and visuals to help her reach her specific goals and the objectives of each lesson (Ex C 7)
• • Another strategy she has been working on when writing paragraphs are first forming a topic sentence, then adding three pieces of information from the text to support her topic sentence, and a concluding sentence. At times she does struggle to locate information. Still, with listening comprehension skills, prompting, classroom discussions, and modeling, she can identify the needed information as we continue to build on this skill.” (Ex C 7)
• • Aside from writing, [Student] has been able to work on her math skills to help her better understand the material she is learning in class with routine practice and consistent support based on her individual needs.” (Ex C 7)

Student is noted to have made “significant progress this year.” (Ex C 8)

• • Reading Supports include:
• • Built in repetition
• • Vowel teams
• • High frequency words
• • Multisensory instruction D 09/06/2022 Student’s Program Description General characteristics, if the UP, include:
• • Individualized program for grades 1 to 12
• • Students with learning disabilities, including dyslexia and school anxiety (Ex D 1)

Student services include:

• • Pull-out reading instruction with a Wilson Certified Reading Specialist
• • OT
• • SLT
• • Counseling
• • Reading Intervention every day for 40 minutes with an Orton Gillingham based program in a group of three
• • Resource Room, to work on executive functioning skills (Ex D 1)

Student is noted to benefit from modifications and accommodations that “are built within the [UP] curriculum. These include checking for understanding, preferential seating, extended time, graphic organizers, wait time for processing, repeated listening sections, questions read, chunking and scaffolding lessons. The small class size and the individualized differentiated instruction are most beneficial.” (Ex D 2)

E 2022-2023 Class Schedule

Student 22-23 class schedule.

F 09/07/2022 Tuition Affidavit

Student summer program invoice of $3,950.00 remains unpaid. (Ex F 1)

Student ten month program invoice of $64,850.00 remains unpaid, (Ex F 2)

G Undated [REDACTED] Program Description

General characteristics of the UP:

• • non-profit prep school that specializes in the academic needs of students with learning difficulties such as Dyslexia, Dysgraphia, Dyscalculia and other Auditory and Language Processing Disorders, along with anxiety, school avoidance, and AD/HD;
• • emphasize academic success while simultaneously supporting differentiated instruction, college or vocational prep, and social-emotional learning, along with on-site speech, reading, and occupational therapies (Ex G 1);
• • UP program includes:

• Small, supportive classes

• On-site speech, reading, counseling, & occupational therapy in dedicated rooms

• Social-Emotional learning

• Strong Home/School Connection

• College & Vocational Counseling

• Over 95 years of educational excellence and experience;

• • Student are taught in small classes, and the UP provides:
• • Full NY State diploma curriculum
• • Small, Supportive Classes
• • On-site speech, reading, counseling, and occupational therapy
• • Strong Home/School Connection
• • Social-Emotional Learning
• • Vocational and Life Skills program (VEEP)
• • More than 85% of our graduates go on to college
• • Strong music and art programs
• • Over 95 years of educational excellence and experience (Ex G 3);
• • The UP Reading Program, for qualified students, includes
• • instruction individually and/or in group by our Wilson-certified and literacy-certified reading teachers
• • Students who require Wilson Reading instruction receive it individually for at least three, forty-minute periods per week
• • To assure continued growth and progress in reading, the students are given systematic and explicit instruction in all reading areas (Ex G 4);
• • Related services include:
• • Speech/language therapy
• • Occupational therapy
• • Counseling
• • Resource Room
• • UP [REDACTED] Program ([REDACTED]) is:

“a comprehensive and multi-sensory reading system that integrates phonological awareness, phonics, handwriting, fluency, vocabulary, spelling, and comprehension in an instructional design that is based on how struggling readers learn. S.P.I.R.E. is skill-based and follows a scope and sequence that begins with simple skills and moves to more complex, spiraling concepts in order to bring students to full literacy. [REDACTED] is being used in grades 1-6.” (Ex G 6)

H 07/07/2022 Enrollment Agreement

Student Summer 2022 Enrollment Agreement is noted to have a Tuition of $3,975.00 with a Deposit of $100.00. (Ex H 1)

Parent is obligated to payment via signature. (Ex H 2)

Student Ten Month 2022-2023 Enrollment Agreement is noted to have a Tuition of $64,850.00 with a Deposit of $3,000.00. (Ex H 3)

Parent is obligated to payment via signature. (Ex H 5)

I 2020 Tax Returns

Parent 2020 Tax Return reflects limited income of $[REDACTED].

J 06/16/2022 Ten Day Notice of Intent

Parent provides appropriate notice to the District of: alleged failure to offer the Student a FAPE for the 22-23 school year; intent to continue enrollment at the UP; and intent to seeks District funding of UP Student Tuition.

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [[REDACTED] Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [[REDACTED] Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 2022-2023 School Year

DOE opted not to present a defense to the Parent’s allegations.

The DOE has evidenced neither the development of an appropriate IEP, nor placement, for the commencement of the 2022-2023 school year.

The IEPs evidenced do show the Student’s need for special education services, including a specialized school. (Ex 1-32 & 1-33 and 3-32 & 3-33)

DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 2022-2023 school year.

I find the DOE failed to offer the Student a FAPE for the 2022-2023 school year.

UP Placement for the 2022-2023 School Year

Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 2022-2023 school year.

The credibility of the documentary and testamentary evidence was not controverted by the DOE and the evidence is relevant and material to the issues to be determined. I find that the documentary evidence on behalf of the Parent credible and persuasive in favor of the Parent.

Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex 1, 3, B, C, D, E, G, H & I and T 43-45, 46-48, 49, 50, 58-59)

Notably, the UP provides Reading instruction, and support, tailored to the Student’s needs which include: [REDACTED], individualized attention and small group instruction. (T 56, Ex G 6, Ex C 2)

UP provides special education services specifically tailored to meet the needs of the Student.

I find UP provides an appropriate education and program for the Student for the 2022-2023 school year.

TUITION FUNDING 2022-2023 School Year

Parent is entitled to funding for the UP, 2022-2023, Tuition.

The DOE has denied a FAPE to the Student for the 2022-2023 school year.

Parent provides appropriate notice to the District of: alleged failure to offer the Student a FAPE for the 2023 school year; intent to continue enrollment at the UP; and intent to seeks District funding of UP Student Tuition. (Ex J)

Student summer program invoice of $3,950.00 remains unpaid. (Ex F 1)

Student ten month program invoice of $64,850.00 remains unpaid, (Ex F 2)

Student Summer 2022 Enrollment Agreement is noted to have a Tuition of $3,975.00 with a Deposit of $100.00. (Ex H 1) This differs slightly from the more recent amount, as indicated above.

Parent is obligated to payment via signature. (Ex H 2)

Student Ten Month 2022-2023 Enrollment Agreement is noted to have a Tuition of $64,850.00 with a Deposit of $3,000.00. (Ex H 3)

Parent is obligated to payment via signature. (Ex H 5)

Parent 2020 Tax Return reflects limited income of $[REDACTED].

Parent Testimony includes details which evidence an inability to fund the Student 22-23 UP Tuition and await reimbursement. (T 58-61)

With regard to fashioning equitable relief, one court has addressed whether it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so (Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). The court held that "[w]here... parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A., 769 F. Supp. 2d at 428). The Mr. and Mrs. A. Court relied in part on dicta from earlier cases in which similar claims seeking direct retroactive payment to a private non-approved school were asserted (see Connors v. Mills, 34 F. Supp. 2d 795, 805-06 [N.D.N.Y. 1998] [opining that such financial disputes should be resolved within the administrative hearing process]; see also S.W., 646 F. Supp. 2d at 358-60). The Mr. and Mrs. A. Court held that in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs (Mr. and Mrs. A., 769 F. Supp.2d at 430).

In this matter the Parents choose to continue Student placement at UP, without any DOE alternative.

Parent needs to meet the burden of production and persuasion with respect to whether they have the financial resources to "front" the costs of a unilateral placement and whether they are legally obligated for the student's tuition payments (Application of the Dep't of Educ., 12- 132; Application of a Student with a Disability, 12-036; Application of a Student with a Disability, 12-004; Application of the Dep't of Educ., 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041).

I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE and is entitled to direct DOE funding of the UP tuition, for the 2022-2023 school year.

I find the Parent evidenced an inability to fund the Student 22-23 UP Tuition directly. And await reimbursement.

I find the Parent is entitled to direct UP funding as Ordered below.

TRANSPORTATION

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). In addition, State law defines special education as "specially designed instruction... and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]).

Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 16035). If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]).

Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

Each DOE IEP includes the mandate for special education transportation services:

• • Transportation from the closest safe curb location to school. (Ex 1-37 & 3-36)

I find evidence supports the provision of a special education transportation for the Student for the 2022/2023 school year.

ORDER

• • The Department of Education (DOE) failed to offer the Student a FAPE for the 2022-2023 school year.
• • [REDACTED] serves as an appropriate Student program and placement for the 2022-2023 school year.
• • The DOE shall directly fund Student, 12 month, 2022-2023, [REDACTED] [UP] Tuition, as follows:
• • Student 2022 summer program: $3,950.00
• • Student ten month 22-23 program: $64,850.00
• • Total: $68,800.00
• • If Parent has paid any portion of the above then those funds will be reimbursed to the Parent.
• • The DOE shall provide Student with Special Education Transportation, to and from [REDACTED] [UP], including
• • Transportation from the closest safe curb location to school.
• • The DOE shall provide Parent with any documents or forms necessary to facilitate payment under this Order, within ten days of the date of this Order.
• • 6. This decision is subject to appeal and review by the State Review Officer.

DATED: November 10, 2022

DANIEL AJELLO

DANIEL AJELLO

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.